Police Chase Gives Rise To Wild Claim

When I received the e-mail that contained this question toThe FC&S Bulletins, I saw one of my old law schoolprofessors sitting up nights coming up with Rube Goldberg casescenarios to drive us poor students crazy (the guys that write Barexam questions must be really warped).

I actually posed the question to another editor on the staffhere: “Do you think this is real? Or is somebody pulling our leg?”She listened to the facts and said: “No, I think thats just thekind of thing that happens to people.”

Well, thats what makes our lives interesting, I guess. I checkedthe properties on the e-mail–indeed, it came from within one of thebig, reputable companies where FC&S use is frequentand a lot of thought goes into claims handling. In fact, thiscompany maintains a school to teach insurance coverages andtechniques.

If Ive got your attention, Ill get to the question:

“There is a police chase, where police units including a canineteam are involved. The bad guy is in a stolen car. He leaps out ofthe car and starts running. The police release the dogs.

“Meanwhile a man [picture this poor guy] on the side of the roadgets scared, seeing this abandoned car rolling toward him, alongwith a bad guy followed by snarling German Shepherds and cops withguns drawn. The bystander leaps onto our insureds vehicle, which islegally parked and unoccupied. The stolen vehicle rolls into thevehicle, causing the man to fall off and be injured.

Where does the man go for medical coverage?”

Whew. Dodged that bullet. I thought the question was going toinvolve the overall coverage situation. Like, are the cops liablefor the bystanders injury? Can you sue city hall? Did the bad guyhave either homeowners or auto coverage (although he sure didnthave a reasonable belief that he could use the stolen car, negatingcoverage there). Did the injury result from an intentional act?

However, the question is specific: Does the insurance of theparked car's owner pick up medical payment coverage for the injuryto the scared bystander?

Med-pay insures reasonable expenses incurred for medicalservices because of bodily injury caused by an accident (this seemsto qualify), and sustained by an insured. “Insured” is defined toinclude “any other person while 'occupying' (a defined term) yourcovered auto.” Occupying means “in, upon, getting in, on, out oroff” the insured auto. Id say our innocent bystander qualifieshere, also.

FC&S Managing Editor David Thamann fielded thisquestion for our subscriber. His opinion is that “the personjumping on the insureds car certainly was an insured occupying thecovered auto, since occupying is defined as upon or getting on theauto.”

But Mr. Thamann points out an exclusion in the med-pay coveragethat may be relevant. “We do not provide Medical Payments coveragefor any insured for bodily injurysustained while occupying avehicle without a reasonable belief that the insured is entitled todo so”

So, the $64,000 dollar question here is: Did the innocentbystander have a reasonable belief that he was entitled to use oroccupy the auto?

Actually, the bystander was probably trespassing by leaping onthe car. And now the FC&S Answer is going to dosomething we usually dont do. Were going legal on you–asopposed to staying with insurance policy interpretation (and I makethe usual disclaimer that I am not involved in rendering legaladvice here; consult your attorney).

While the bystander was possibly a trespasser, he might have hada private right of self-defense, which would give him legitimacy touse the insureds car as a protection device.

At law, a person has the right to take reasonable steps toprotect his life, even if that steps on some legal right of someother person. For example, a sailor can tie up in a severe storm toa dock that is marked “No Trespassing” as a method of saving hislife and not be accountable for the trespass due to theself-defense defense. That person will be accountable for anydamage to the owner, but he can withstand a trespass charge withthe defense of necessary self-defense.

Id apply that theory here. The bystander had no other option inan emergency situation. And if he had no other coverage–then themed-pay portion of the car ownerss personal auto policy may well bean option. But if the bystander dented or scratched the car, hes onthe hook for that damage.

Interesting. Since med-pay is not tied to liability on the partof the cars owner, but just to expenses arising out of an accidentinvolving the car, it seems the innocent bystander can stand by theinsureds med-pay coverage, absent an appropriate application of the“without a reasonable belief” exclusion.

Im not sure how it would go in court, but I wouldnt bet againstthe bystanders ability to recover.

Bruce Hillman, JD, is Editorial Director of Risk andInsurance Markets for the Professional Publishing Group of TheNational Underwriter Company, in Erlanger, Ky. Questions andcomment are invited at [email protected].

Reproduced from National Underwriter Property &Casualty/Risk & Benefits Management Edition, July 29, 2002.Copyright 2002 by The National Underwriter Company in the serialpublication. All rights reserved.Copyright in this article as anindependent work may be held by the author.